Court of Appeal for Ontario
Judges: Feldman, Fairburn and Nordheimer JJ.A.
Between
Louis Sirois and Chandra Martens Plaintiffs (Appellants)
and
Pamela Adriana Weston in her capacity as power of attorney for property of Randalyn Lorraine Weston, Brian Wilson and Tanya Lemcke Defendants (Respondent)
Counsel
Christopher S. Spiteri & John MacDonell, for the appellants
Aaron Postelnik, for the respondent, Tanya Lemcke
Heard and released orally: December 14, 2017
On appeal from: the judgment of Justice Giovanna Toscano Roccamo of the Superior Court of Justice sitting without a jury, dated April 27, 2017.
Reasons for Decision
[1]
Introduction
The plaintiffs appeal from the summary judgment that dismissed the plaintiffs' claim against the defendant, Tanya Lemcke, on the basis that the two-year limitation period had expired prior to the claim being instituted against the respondent.
[2]
Background
The appellants purchased a rural property as a retirement place in late 2009. In early 2010, the appellants became aware that a company had an option to purchase an adjoining property upon which the company intended to build a solar farm. In fact, the option had been registered on the title to the adjoining property one day after the appellants had signed their agreement of purchase and sale. The appellants say that they would not have purchased the property had they known about the option that the solar farm company had to purchase the adjoining lands.
3As a result of this information, the appellants first attempted, along with other landowners in the area, to prevent the construction of the solar farm. They failed in those efforts. Construction of the solar farm began in February 2013.
4The appellants asked the respondent, late in 2012, to provide them with an opinion regarding the value of the property at that time. The respondent provided that opinion, in December 2012, which stated that the value of the property had declined significantly given the impending construction of the solar farm.
5The appellants commenced this action on November 30, 2011. The appellants did not include the respondent as a defendant. It was not until October 2013 that the appellants sought leave to amend their statement of claim to add the respondent as a defendant. Leave was granted on November 1, 2013 and the statement of claim was amended to add the respondent as a defendant on November 30, 2013.
[6]
Analysis
In response to the motion for summary judgment, the appellants argued that the limitation period did not begin to run until February 2013 when the construction of the solar farm actually commenced. Up until that point, the appellants say that they did not know that they had suffered actual damage arising from the potential solar farm.
7The motion judge rejected the appellants' position. She concluded, at para. 44 of her reasons:
8I find that the Plaintiffs discovered their cause of action against Ms. Lemcke by February 2010. Although the extent of the damages was still unknown, they knew at that time that they had suffered damage. The fact that the Plaintiffs chose to wait does not take away from the fact that they knew or ought to have known, at that time, that they had a cause of action in negligence against Ms. Lemcke.
9We agree with the conclusion reached by the motion judge. By at least February 2010, the appellants knew about the possible construction of the solar farm on the property adjacent to theirs. They expressly say that they would not have purchased their property if they had had this knowledge before the closing. They also knew at that time that the value of their property would be negatively impacted. Indeed, in an email dated July 19, 2010 to their real estate lawyer, the appellants said that they needed to sue the people who had sold them the property and others, because they had suffered "a huge financial hardship".
10In our view, the situation in this case is indistinguishable in result from the situation in Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, 347 D.L.R. (4th) 657 (Ont. C.A.). In that case, LaForme J.A. said, in part, at para. 32:
11... the plaintiff suffers damage sufficient to complete the cause of action when he enters into the transaction, not when the loss is monetized into a specific amount.
12We would add that the contention that the appellants did not know they had a cause of action until damage occurred when the construction of the solar farm commenced in February 2013, is contradicted by the fact that they commenced this action originally in November 2011 against both the vendor and the appellants' real estate lawyer, based on the same factual foundation and complaint that is now sought to be alleged against the respondent.
13Finally, the appellants' reliance on this court's decision in Butera v. Chown, Cairns LLP, 2017 ONCA 783 is misplaced. The expiration of the limitation period as it related to this sole defendant is precisely the type of discrete issue that could be separated from the other claims in the action and "dealt with expeditiously and in a cost effective manner" (para. 34).
[14]
Disposition
The appeal is dismissed with costs awarded to the respondent in the agreed-upon amount of $7,300, inclusive of disbursements and HST.
"K. Feldman J.A."
"Fairburn J.A."
"I.V.B. Nordheimer J.A."
